Joslin v. State

• Decision Date: 13 November 1940
• Docket Number: No. 8628.,8628.
• Citation: 146 S.W.2d 208
• Parties: JOSLIN et al. v. STATE et al.
• Court: Texas Court of Appeals

146 S.W.2d 208

JOSLIN et al. v. STATE et al.

No. 8628.

Court of Civil Appeals of Texas. Austin.

November 13, 1940.

Rehearings Denied December 31, 1940.

Appeal from District Court, Travis County; H. A. Dolan, Judge.

Action by the State of Texas and others against A. F. Joslin and others, involving the ownership of the title to a portion of the T. & P. Railway Company's right of way in Ector County. From the judgment, defendants appeal.

Reversed and judgment directed.

Hornsby & Hornsby, of Austin, and Fred H. Woodard and Kleberg, Eckhardt & Lowe, all of Corpus Christi, for appellant A. F. Joslin.

Wm. K. Hall, of Fort Worth, Whitaker, Perkins & Turpin, of Midland, Samuels, Foster, Brown & McGee, of Fort Worth, and John W. Stayton and Black & Graves, all of Austin, for appellants Skelley Oil Co., California Co., Empire Gas & Fuel Co., Tide Water Oil Co., Texas Co., Phillips Petroleum Co., W. E. Connell's estate, John Scharbauer, and Millard Eidson.

Wm. McCraw, Former Atty. Gen., and H. Grady Chandler, Asst. Atty. Gen., for appellee State of Texas.

Gerald C. Mann, Atty. Gen., James Noel, Asst. Atty. Gen., and Robert E. Kepke, Asst. Atty. Gen., Wm. Kay Miller and Henry H. Brooks, both of Austin, for appellees Elden B. Busby and Grisham-Hunter Corporation.

BAUGH, Justice.

The controlling question involved in this case is the ownership of the title to a portion of the T. & P. Ry. Co.'s right of way in Ector county. When this case was submitted in this court, there was pending in the Supreme Court, on writ granted from the Amarillo Court of Civil Appeals (80 S.W.2d 1000), the case of Cox v. Campbell, involving ownership of a portion of the right of way of the same Railway Company in Gregg County; the question involved being whether the owners of lands adjoining the Railway Company's right of way acquired title to the center of the right of way, or whether the side lines of the right of way marked the boundary of their respective lands. On the assumption that the decision in the Cox v. Campbell case, Tex.Sup., 143 S.W.2d 361, would control the disposition of this case, we have withheld decision herein until that case was determined by the Supreme Court.

The lands involved in the instant case are the same as those involved in Texas & P. Ry. Co. v. State, Tex.Civ.App., 52 S.W.2d 957, affirmed by the Supreme Court in 124 Tex. 482, 78 S.W.2d 580. Other than a controversy over who has a prior right to an oil lease on said lands, which depends on whether the State has title thereto, the paramount question presented is whether the sale by the State of its lands, under field notes of surveys calling to go only to marked corners on the edge of the right of way, gave the purchasers of adjoining lands title extending to the center of the right of way.

It has long been settled that private grants of lands bordering upon streets, highways, and non-navigable streams, even though the corners be marked, the lines definitely located, and quantity of land exactly ascertained, convey title to the center of the street, highway or streams, "unless such deed contains a clause which expressly declares the contrary intention or contains some other declaration equivalent to such express declaration." Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, 164; Mitchell v. Bass, 26 Tex. 372; Dutton v. Vierling, Tex.Civ.App., 152 S.W. 450, 453. This, under the rule of construction of such grants, is now well settled by decision in this State.

And it is now settled by decisions of the Supreme Court that this rule of construction applies with equal force to grants bordering upon railroad rights of way. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S. W.2d 1080, 85 A.L.R. 391; Cox v. Campbell, Tex.Sup., 143 S.W.2d 361. This is true notwithstanding the former decision of the Supreme Court in Couch v. Texas & P. Ry. Co., 99 Tex. 464, 467, 90 S.W. 860, which case was specifically considered in the Rio Bravo and Cox v. Campbell cases. And as applied to conveyances bordering upon railroad rights of way, the Supreme Court in Cox v. Campbell , referring to such rule of construction, say: "and such rule is not overcome even though the field notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms."

No such express reservation of title in the State to the railroad right of way here involved, was made in the grants to the individual purchasers of the adjoining lands from the State. It is not controverted, however, that the footsteps of the surveyor, the calls for course and distance, and the identification of marked corners on the ground of the lands here involved, extended only to the side lines of the right of way; nor is it controverted that the exact quantity of land stated in the purchases from the State was contained within the field notes of such surveys. Nor have the owners of the abutting lands paid the State anything for the lands included within the right of way which they now claim as a part of their adjoining tracts. But most of the same facts were presented in the Rio Bravo and Cox v. Campbell cases, supra, to which the Supreme Court applied the rule nevertheless.

In the Rio Bravo and Cox v. Campbell cases the portions of the railroad rights of way involved had been acquired by the Railway Company from private owners, and not through grants from the State, as was true in the instant case. In those cases the State had theretofore parted with its title to all of the lands involved, the controversies were between private parties, and a construction of the original grants from the State was not involved. It is the contention of the appellees that the liberal rules of construction in favor of the grantee as between private parties do not apply to public grants made by the State; but that in such cases a strict rule of construction in favor of the State and against the grantee must be applied; citing particularly, among other cases, Schutze v. Dabney, Tex.Civ.App., 204 S.W. 342; City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563; Magnolia Pet. Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929.

Two cardinal rules of construction of the extent of a grant are, (1) the footsteps of the surveyor, where they can be located on the ground; and (2) the intention of the parties, where that can be definitely ascertained. And appellees urge that upon resurveys of the lands adjoining the right of way, the footsteps of the surveyor upon which the patents were issued were definitely established as going only to the side lines of the right of way; and that the facts and circumstances, and the findings of the trial court, show that it was the intention both of the State and of the grantees, that only the lands to the edge of the right of way be included. But it was held by Judge Key in Dutton v. Vierling, supra, notwithstanding the footsteps of the surveyor, which were there found; and the exact acreage included within the field notes, in the absence of a clear reservation in the grant showing a contrary intention, the conveyance went to the center of a non-navigable stream. The same rule has been applied to streets and highways in Texas Bitulithic Co. v. Warwick, supra. While the intention of the parties to a grant, where ascertainable, generally controls, the following significant language is used in the Rio Bravo case [121 Tex. 427, 50 S.W.2d 1087, 85 A.L.R. 391]: "The prime object and purpose of such rules [of construction] is to enable them to ascertain and give effect to the true intention of the parties unless such intention is inconsistent with some settled rule of law." (Italics ours.) And the settled rule of law therein announced and followed in Cox v. Campbell, supra, is that, absent an express reservation, the grant is conclusively presumed to go to the center of the non-navigable stream, highway or railroad right of way. There being no such reservation in the grant, under such rule of construction, other evidence as to what was the intention of the parties becomes unimportant.

Now as to the application of this rule of construction to public grants. The case of City of Austin v. Hall, supra, involved a grant bordering upon a navigable stream. It is now settled by the decisions hereinabove cited, and others, that such rule does not apply to lands bordering upon navigable streams and tide waters. However, highways, railroad rights of way and non-navigable streams constitute a distinct classification from navigable streams, and such...